OK water rights victory historic, setting stage for state-tribal case

OKLAHOMA CITY — The unanimous United States Supreme Court decision favoring Oklahoma in the water rights case, “Tarrant Regional Water District v. Herrmann,” sets the stage for the next big development in Oklahoma

SCOTT’S SUCCESS: Oklahoma Attorney General E. Scott Pruitt led the team of state lawyers that successfully rebuffed efforts by Tarrant County (Texas) to force water sales, in an important case before the U.S. Supreme Court.

water policy.

That will be either a negotiated settlement over apportionment of water rights among interested parties — including the state of Oklahoma and the Chickasaw and Choctaw Nations — or new intensity in a case, filed in August 2011, that pits the state against the tribes.

Last week’s 9-0 ruling, crafted by Associate Justice Sonia Sotomayor, ended a six-year water war between the Sooner State and Tarrant County (Fort Worth and surrounding towns in the greater Dallas-Forth Worth area). The North Texas agency had asserted a right for Texas – under provisions of the Red River Compact, approved in 1980 – to get its asserted share of water, even if that meant reaching into Oklahoma to secure the asset.

The compact includes Oklahoma, Texas, Arkansas and Louisiana. In briefs, Arkansas and Louisiana had agreed with Oklahoma’s position – and Justice Sotomayor concurred with the three states’ arguments. Her key conclusion was that the original compact “strongly suggests that cross-border rights were never intended to be part of the agreement.”

The decision rebuffed a filing from the Obama Administration’s Justice Department, which had filed briefs agreeing with the Lone Star State. Texas, which sued after Oklahoma officials refused to authorize water sales, had pushed the case in district court and at the Court of Appeals level. Oklahoma’s legal position was supported by other western states, as well.

Oklahoma City already relies on southeast Oklahoma water to meet its needs, and that reliance could increase in the future. However, an application to draw water from the Kiamichi River basin is currently wrapped up in a lawsuit the Chickasaw and Choctaw Nations filed nearly two years ago, after years of building tension.

Oklahoma Attorney General E. Scott Pruitt, in a statement sent to CapitolBeatOK, said, “This is a major victory for Oklahoma with all nine justices agreeing with our argument that Texas does not have the right to come into Oklahoma and take our water.

“We successfully defended Oklahoma’s right to protect its natural resources at the district court, circuit court of appeals, and now the Supreme Court, which confirmed Oklahoma’s sovereignty over its water resources. This unanimous decision will affect all western states governed by multi-state water compacts, and will protect Oklahoma’s ability to control this vital resource for generations to come.”

On behalf of the Oklahoma Water Resources Board, executive director J.D. Strong described the unanimous opinion as “vindication for Oklahoma and the two neighboring Red River Compact states who joined with us to hold Texas accountable to the promises and provisions of our 33-year-old Compact agreement. It’s also a victory for the seven mostly arid western states who sided with Oklahoma and stood to lose at least as much control over their limited surface water supplies.

“Most importantly, though, this decision is a resounding victory for the citizens of Oklahoma and our ability to manage their water for their benefit. While the elegant defense of our position by Oklahoma’s legal team spawned considerable optimism, it’s a relief that the high court has reaffirmed our interpretation of long-settled agreements over the apportionment of interstate waters. After many years of legal maneuvering and saber-rattling, this should end, once and for all, Tarrant’s attempts to circumvent Oklahoma’s water management authority.”

Senate President Pro Temp Brian Bingman, R-Sapulpa, asserted the decision supported “Oklahoma’s right to determine how this precious natural resource will be used. Having adequate water supplies is critical to our state’s ability to create and attract more jobs, promoting even greater economic growth.

“We also understand the importance of developing a long-term water plan to meet our citizens’ needs. It’s why I helped create the Joint Legislative Water Committee in 2011 that included members from every part of Oklahoma. We also must continue to work with the Tribes on this crucial issue — but all of these efforts would be completely undermined if another state had the ability to take Oklahoma’s water whether we agreed or not.”

The Senate co-chairman of the Joint Legislative Water Committee, Brian Crain, R-Tulsa, said the Court ruling had a direct and immediate practical effect: “Whatever happens to Oklahoma’s water in the future, that decision will be made north of the Red River.”

State Sen. Kyle Loveless, R-Oklahoma City, told CapitolBeatOK, “The justices agreed that Texas cannot force Oklahoma to sell them water. This ruling hopefully will set the stage for all parties on the other water lawsuit and enable Oklahoma City and the Tribes to work together to reach an amicable resolution.”

Gov. Mary Fallin cheered Attorney General Pruitt’s work on the case, saying, “We’ve maintained all along that Oklahoma must have the ability to set its own water policy.”

U.S. Rep. James Lankford also applauded Pruitt’s work on the issue, describing it as “tenacious.” He concluded, “States can enter into agreements to enable other states to purchase resources when they choose. However, these compacts do not require states to share resources in perpetuity.”

For the last two years, state and tribal officials have been negotiating on water policy issues behind closed doors, with a federal court order putting a blanket of confidentiality over the proceedings. Much (but not all) of the tension in tribal-state relations centers on completing claims to the basin of Sardis Lake, part of the Kiamichi watershed.

The Chickasaw and Choctaw tribes have sued to oppose planned use of water from the lake for Oklahoma City, paid a debt owed to the U.S. Army Corps of Engineers. The two tribes have asserted water rights throughout southeastern Oklahoma.

Contact Patrick B. McGuigan, Oklahoma City bureau chief for the Watchdog.org network, at Patrick@capitolbeatok.com and follow us on Twitter: @capitolbeatok.

Patrick B. McGuigan is bureau chief for the Oklahoma City Bureau of Watchdog.org, and works from the press room at the state Capitol. He is also the editor of CapitolBeatOK, and Associate Publisher of The City Sentinel newspaper. In 2013, The Washington Post blog “The Fix” designated Pat one of the best reporters in Oklahoma. In addition to the Oklahoma Society of Professional Journalists, where he serves as state secretary-treasurer, Pat is a member of the National Press Club and the Tulsa Press Club.

Now that you’ve patted each other on the back, the real test comes. Can you pull together the factions of Oklahomans that all want a piece of the water action? The reality is, Texas has a lot of folks now and is going to double in about 20 years and they cannot meet their water needs. So, put together a coalition and sell the water you don’t need to an obviously very willing buyer. All of that water running down the Red river while you celebrate is money that disappears forever.